‘Most of Government Is Unconstitutional’Did the Supreme Court just suggest that it is prepared to agree with that statement?
By Nicholas Bagley
Mr. Bagley is a law professor.
June 21, 2019
On Thursday, the conservative wing of the Supreme Court called into question the whole project of modern American governance.
In Gundy v. United States, which concerned the constitutionality of a law requiring the registration of sex offenders, four of the more conservative justices endorsed a controversial legal theory according to which Congress lacks the power to delegate broad powers to agencies like the Food and Drug Administration and the Department of Heath and Human Services.
For now, the four more-liberal justices have brushed back the challenge, ruling 5 to 3, with Justice Samuel Alito, that Congress can give to the executive branch the authority to implement that specific law. But a close reading of the decisions in the case — and the fact that Justice Brett Kavanaugh was recused — suggests that the liberals may not have the votes to turn back the conservative assault on Congress’s powers.
Federal agencies have been vested with expansive authority since the dawn of the republic, but the administrative state as we know it really took off in the 20th century. The rise of agencies like the Office of Price Administration, the Social Security Administration and the Environmental Protection Agency was essential to the prosecution of two world wars, the creation of the post-New Deal welfare state and the regulation of novel risks such as industrial pollution...
https://www.nytimes.com/2019/06/21/opinion/sunday/gundy-united-states.html?fbclid=IwAR3OSAwWSuO24z1yjAOO8nEcurnrgRFr5omHj1T6BopT3WtQzbrKTwgvFw0
